Page 222 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
Groenewegen van der Made's (1613-1652)30 Tractatus de legibus abrogandis (1649). In this book the author discusses which texts in the Corpus iuris civilis had become outdated in his time. Two issues are relevant for our subject. First, is the penal character of civil law remedies still taken for granted in the Dutch Provinces? Secondly, does the plaintiff have to specify his claim in legal terminology?
Regarding the former, it is relevant to explore whether the supposedly penal character of the aedilician remedies still holds, because, if that is no longer considered so, the aedilician remedies lose a feature which distinguished them from the contractual remedies for latent defects.31 The second question concerns how a concurrence of remedies is solved. If it is enough for the plaintiff to state the facts of the case, the judge has to pick the right remedy. Otherwise, the plaintiff has to do so himself with the risk of losing his case should he choose the wrong one. This issue particularly touches on the boundaries of remedies for defects in the thing and the remedy for lesion beyond moiety. These remedies partly overlapped regarding the facts of the case, but did not share the same features. As observed in previous chapters, the first concentrated on the defect, the other focussed on the object's price.32
With regard to whether some civil remedies still bore a penal character, Groenewegen van der Made seems to deny so in his discussion of the remedy for what is thrown or spilled (actio de eo quod dejectum effusumve).
'Today, the action for what is thrown or spilled is instituted not for the object's double value, but for the loss incurred... Today, if a free man is killed, there is no fine of 50 gold pieces, but an action is given for how much damage the judge considers in this case is caused by the incident'.33
The Roman condemnation for the simple or the double or 50 gold pieces makes room for an estimation of damages by the judge of the damages suffered due to medical treatment and lost income.34
Not only delicts and quasi-delicts lose their penal character. This can be gathered from Groenewegen van der Made's comments on D. 21.1, dealing with the aedilician remedies for latent defects. There, the author considers the texts containing a condemnation for the simple or double as obsolete. To D. 21.1.31.20, which deals with the stipulation for the double with which parties agreed on a fine consisting of twice the paid sum, Groenewegen van der Made notes that 'because the stipulation for the double has been abolished... , it seemed proper that today it is no longer possible to bring the action
30 For biographical data P. C. Molhuysen, 'Groenewegen van der Made, Simon', in: NNBW, pp. 677-678.
31 In particular defended by Cujas. See 4.2.1.4.
32 See 3.5.
33 Groenewegen van der Made, Tractatus, to Inst. 4.5, p. 49: 'De eo quod dejectum effusumve est, hodie
non dupli, sed quantum damnum sit constituta est actio... Et ob hominem occisum hodie non
quinquaginta aureorum poena constituitur, sed quantum ob eam rem iudici videtur, actio datur...',
34 Groenewegen van der Made, Tractatus, to Inst. 4.5, p. 50: 'Judex enim computare debet mercedes medicis praestitas, caeteraque impendia, qua in curatione facta sunt, praetera operas, quibus caruerunt
et carituri sunt ob id quod occisus est...'.
214